### FILED OCTOBER 15, 2015 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32606-3-111 Respondent, ) ) 

### v. ) ) RAUL LOPEZ SOTO, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, 

### 1. Appellant RaulLopez Soto claimstheprosecution engaged in misconductwhenthe State, in summation, referenced a detective's beliefinthevalidity ofthe criminal charges and characterizedLopez Soto'stheory ofthe case as "desperate" and "ludicrous." We decline reversal ofthe convictions becauseLopez Soto invited testimony from the detective thatthe detectivebelievedthe charges andbecause Lopez Soto forwarded no objections during closing arguments. FACTS In October2012, ten-year-oldMaria lived in Grandview withher motherAlma Torres, brother Carlos, and sisterEvalinne Torres. Maria and Carlos are fictitious names sincethe two are minors. Evalinne's boyfriend, appellant Raul Lopez Soto (Lopez), alsoNo. 32606-3-111 State v. LopezSoto

lived with the family. Accordingto an earlierreport by Maria, around Halloween 2012, Raul Lopez playedwhathe called "thecandy game"with her. Lopez covered Maria's eyes with a tshirt andtold her to identify the "candy"he inserted in her mouth. Lopezthen placedhis penis in Maria's mouth. Days laterLopez playedhis "game" again inthe backyard ofthe family's Grandview home. Heputhis penis in Maria's mouth again. LaterLopez played his game a third time in the basement ofthe home, butMaria summarily loosened the blindfold from her eyes and spied Lopezremovinghis penis from his trousers. Maria told Lopezto stop and not toplay the candy game anymore. Lopez endedthe attempt at

a third game and did nottry to play the game with Maria again. OnJuly 23,2013, Raul Lopez and Carlos bickered after Carlos called his sister, Evalinne, a bitch. Lopez and Alma Torres also argued. To end the conflict, Alma ferried Carlos and Mariato their uncle's house in Prosser on herway to work. On the short journeyto Prosser, Mariadisclosed to her motherthe candy game Lopezplayed with her. Alma immediately returned to the Grandview home and confrontedLopez. Lopez admitted playing a candy game with Maria, but maintained he inserted actual candy in Maria's mouth. Lopez vehemently denied sexually assaulting Maria. Duringthe evening ofJuly 23,2013, motherAlma Torres called the Grandview Police Department and reported Raul Lopez's assaults on Maria. On August 8, 2013, DarlaJensen, a child interviewer, conducted an interview ofMaria, who described the 2

### No. 32606-3-II1 State 

### v. LopezSoto 

### candy game incidents, including a physical description ofLopez's penis. On August 9, 2013, police interviewedLopez, who admitted to placing candy in Maria's mouth during the time period she identified, but denied sexually assaulting her. Lopez stated thatMaria could describe his penis because she walked into the bathroom while he urinated. PROCEDURE The State ofWashington charged Raul Lopez with two counts offirst degree rape ofa child and one count ofattempted first degree rape ofa child. Thereafter Lopez and the State discussed a time for the defense to interview Maria and AlmaTorres. Alma Torres stopped communicating with the State prosecutor's office and stated she would not allow Mariato testify at trial. Torres maintained that Maria desired to forget the incidents. The State and Raul Lopez scheduled interviews ofMaria andAlmaTorres, despite the women's reluctance to cooperate, for March 4, 2014, butLopez cancelled at the last minute. Alma and MariaTorres traveled to the interview site when the State called to tell them it was cancelled. Duringthis phone call, Almatold the prosecutor's office that Maria told her she did not see Lopez's penis on the third attempted candy game. The State maintains it

### told Lopez's attorney about this comment from Alma Torres between March 4,2014 and March 20,2014. Lopez insists the State never forwarded the information.

3No. 32606-3-III State v. LopezSoto

OnMarch 20,2014, the defense interviewed Maria and AlmaTorres. During the interview, Maria stated she may have imagined or dreamed the candy games. During trial, Maria testified, but did not remember anythi,ng she said in her August 8, 2013 interview with DarlaJensen. Maria recalled even less about the candy game incidents. The court allowed the State to play for thejury the video recording ofthe Jensen interview ofMaria. During trial, Grandview PoliceDepartmentDetective Jose Martin testified. DetectiveMartin responded to AlmaTorres' reportthat Raul Lopez sexually assaulted Maria. On cross-examination, Lopez's attorney questioned Martin's impartiality in investigating the crime: Q. You saidthat you drove mom and the victim to the courthouse? A. I did. 

### Q. Who's the victim? A. [Maria]. Q. You had already made up your mind about that? A. Itwas reported that way. I'mjustidentifying her. Q. There wasn't anything in the interview that convinced you that she wasn't the victim? [Prosecutor]: Objection. THE COURT: I'm going to overrule it. [Prosecutor]: Okay. A. Can you ask the question again. 

### Q. (By Mr. Dold [Defense counsel]) There wasn't anything in the interview that convincedyou she wasn'tthe victim? A. Well, based on my training and experience, and I can honestly say that I believe she was a victim. 

### Q. Yes. So ifI understood your comments correctly, when you spoke to OfficerArraj, your first concern was the safety of [Maria]? A. Correct. 4No. 32606-3-111 State v. LopezSoto

Verbatim Report ofProceedings (VRP) at 277-78. Later, outside the presence ofthejury, the trial court clarified the purpose and effect ofthe colloquy between defense counsel and Detective Jose Martin: THE COURT: Now, I'vegot that partnailed down. Let me go back for one moment here. There was a couple objections I wanted to make a quick reference to. It was during Detective Martin's testimony, actually cross-examination. Ijustwant it tobe clear. Mr. Dold, and it's my words, essentially invited OfficerMartin to comment on guilt or innocence as far as I was concerned, whether he believed [Maria] or felt herto be a victim. MR. DOLD: Correct. THE COURT: I would not have allowed that under any other circumstances. I wantthe record to be clear that that testimony was brought forth by you, and he was responding to questions that you specifically directed him to respond to. MR. DOLD: I asked the same question ofMs. Wahl. THE COURT: Exactly. Thank you for clearingthat up. I wantedto make sure that the record stood solid in that regard. VRP at 327-28. At closing, the State commented on the defense's cross-examination ofDetective Jose Martin and on Maria's testimony: Now, we heard testimony elicited by the defense that Detective Martin

-- it was an impact on him and he saw it. This experienced detective looked at that interview, and at thatpoint where he had had an open mind he saw it, and he believed. He knew that this was true. A girl ofthat age and sophistication would not be able to describe things the way she did, how she did it in those kind ofsensory details in the way she did and keep everything straight and see it the way she did. The defendant desperately tried to throw out explanations that were, frankly, the evidence will show and common sense, were not true. It'sjust 

### 5No. 32606-3-111 State 

### v. LopezSoto

born out ofdesperation. Ofcourse, she would know what a male penis would look like. 1never lock the door. Everybody has walked in onme. It doesn't matter. It's my house. 1can do what 1want. It doesn't matter if there's little kids running around or my mother-in-law. It's my house, my house. Does thatring true? What does that say when you throw something so ludicrous and desperate out there? Nobody else saw this candy game. He wanted some little kernel that he could

-- oh, this musthave stemmed out ofthat. It must stem out because 1am getting

-- well, they're leaving. Clearly make them more mad at me and then they'll come back. Again, excuses born out ofdesperation that does nothold true. This young girl, was she telling the truth in that interview? This girl, you saw in a much different situation in front ofthe stand, looking upon us and shutting down, almost going catatonic. I'll leave youwith this: The way she described it to DarlaJensen and all that detail, all that struggling to describe something that has different aspects, do youhave a reasonable doubt that that occurred the way she said it, the way she described it, the way she motioned, how much in torment meantthat made her? You are the solejudges ofthe credibility. Doyou understand what's happened, what this issue ofdelayed disclosure caused and the same factors that came to bear as 1started this case? 1ask thatyou all take that into consideration. VRP 352-54, 358-59. Raul Lopez argued at closing: [Maria] never said he puthis penis in my mouth. When 1asked her sitting here in the courtroom, you realize that 1was the only one that asked that question. Nobody else asked that question. Nobody else wanted to know the answer to that question because they assume -- the victim advocate assumes the children are telling the truth. That's herjob, to be supportive, not to question. It's the same exact training that DarlaJensen has, exactly the same training. So instead ofdoing child advocacy, which that she does most of the time, she's now doing one ofthe 15 interviews she's ever done. She's still doing advocacy. 6No. 32606-3-III 

### State v. 

### LopezSoto

The officer, the same training. He knows that he's not going to get an admission from herbecausehe's a guy. So they're setting up the best possible way ofgetting [Maria] to tell this story. When he goes and talks to my client, with all ofhis training and interrogation, etcetera, etcetera, etcetera, he told you about thattraining. He is absolutely convincedthat my client is guilty not because she said he putthe penis in my mouth but because ofthis great big, dark secret thatthe state started their opening with and began their closing with, this secret, this delayed disclosure, which means absolutely nothing, absolutely nothing. Everybody started with the proposition that my client was guilty. They worked from that propositionto try and prove 

### it. The results ofthat is what gotplayed out during the trial. The state's case is ontrial. It'snot [Maria] that's on trial. It's her statements that are ontrial. What they prove beyond a reasonable doubt. God love her. She's a lovely little girl, had a great interview with her. She waspolite. She was friendly. She was cheerful. [Prosecution]: Objection, facts not in evidence. THE COURT: Sustained. [Defense]: You had a chanceto meet her. In none ofthe interviews did [Maria] say­ [Prosecution]: Objection. THE COURT: Sustained. VRP at 360, 365, 367. In rebuttal, the State argued: Ifthis is some utopia where everything isjustperfect and this is the first big argument that they everhad, an argumentthat didn'tresult on blows being thrown,justupset at someone using the "B" word, well, that never happens in any household. That's suddenly going to result in them never coming back to a house that they'vebeen at most in about a year, and a girl is going to expose this? That's what she's going come up with, not the scissors incident orpushing orhitting orpinching, that suddenly I had some guy'spenis in my mouth? Ludicrous. Does that make any sense whatsoeverwhen you actually lay it out like that? No, it doesn't. That's why it wasn'texplained logically because it's ludicrous. 7No. 32606-3-III State 

### v. LopezSoto

Is the girl that got up on the stand, that unsophisticated, meek little girl capable ofsaying what she said to Darla and all that detail ifit did not happen? Is there any wonder that-it's blame. Is there any wonderthat after the detective, who kept an open mind, didn'treally know a lot ofthe details, then sees that interview, who wouldn't go into talking to the defendant after witnessing that and knowing the truth ofwhat the girl said, with all those details? That is not something you see, is it? Do you expect that often-year old girls? Ofcourse not. This ludicrous story that the defendantputs forward that it must be to somehow to get a home backthat they're never going to lose. VRP at 370-71. Raul Lopez made no objections during the State's closing and rebuttal arguments. The trial court instructed thejury, in part, as follows: You are the solejudges ofthe credibility ofeach witness. You are also the solejudges ofthe value or weight tobe given to the testimony of each witness. In considering a witness's testimony, you may consider these things: the opportunity ofthe witness to observe orknow the things he or she testifies about; the ability ofthe witness to observe accurately; the quality ofa witness's memory while testifying; the manner ofthe witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias orprejudice that the witness may have shown; the reasonableness ofthe witness's statements in the context ofall ofthe other evidence; and any other factors that affect your evaluation or beliefofa witness oryour evaluation ofhis orhertestimony. The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. Itis important, however, for you to rememberthat the lawyers' statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence orthe law in my instructions. Clerk'sPapers at 23.



### 8

### No. 32606-3-II1 State v. LopezSoto



### Thejury found Raul Lopez guilty ofall three charges, two counts offirst degree rape ofa child and one count ofattempted first degree rape ofa child. The trial court sentencedLopez to 162 months to life confinement on each count ofrape and 121.5 months to life confinement on attempted rape, with all sentences to run concurrently. LAWAND ANALYSIS Raul Lopez contends that the State committedprosecutorial misconduct during its closing and rebuttal arguments by referencing Detective Jose Martin's disbeliefin Lopez's innocence and commenting on Maria's credibility as a witness. Lopez also contends that it was misconduct for the State to call his defense theory "ludicrous." He asks this court to reverse his convictions, and remand for a new trial. The State contends that Lopez waived this assignment oferrorbecause he did not object during the State's closing argument or rebuttal. The State also argues that its conduct during closing argument did not rise to the level ofmisconduct. Finally, the State argues that Lopez can show no prejudice. We hold that Lopez waived any error and affirm his convictions. Raul Lopez acknowledges that he did not object to any ofthe prosecution's comments during closing argument. Lopez argues that he did not waive his claim of prosecutorial misconduct because the conduct irrevocably prejudiced his case. A prosecutor enjoys wide latitude in drawing and expressingreasonable inferences from the evidence during summations. State 

### v. Gentry, 

### 125 Wn.2d 570,641,888 P.2d 9

### No. 32606-3-III 

### State v. 

### Lopez Soto

1105 (1995). Nevertheless, aprosecutor's remark is improper ifhe or she misstates the applicable law, shifts the burden to the defense, mischaracterizes the role ofthejury, or invites thejury to determine guilt on improper grounds. 

### State v. 

### Emery, 174 Wn.2d 741, 759-60,278 P.3d 653 (2012); 

### State v. 

### Boehning, 127 Wn. App. 511, 522,111 

### P.3d 899 (2005). This court reviews a prosecutor's comments during closing argument in the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and thejury instructions. 

### State v. 

### Boehning, 127 Wn. App. at 519. A defendant claiming prosecutorial misconduct must show that the prosecutor's conduct

was both improper and prejudicial in the context ofthe entire record and circumstances at trial. 

### State v. 

### Emery, 174 Wn.2d at 756. Even ifthe defendant shows the comments were improper, the error does notrequire reversal unless the appellate court determines there is

a substantial likelihood the misconduct affected thejury'sverdict. 

### Gentry, 125 Wn.2d at 641. Ifa defendant did not object to a prosecutor's alleged misconduct at trial, the defendant waives any errorunless the misconduct was so flagrant and ill 

### intentioned that ajury instruction could not have cured the resulting prejudice. 

### Gentry, 125 Wn.2d at 596. Reviewing courts should focus less on whetherthe prosecutor's misconduct was flagrant or 

### ill intentioned and more on whetherthe resulting prejudice could have been cured. 

### Emery, 174 Wn.2d at 762. Under this heightened standard, the defendant must show that (1) no curative instruction would have obviated any prejudicial effect onthe 10No. 32606-3-III 

### State 

### v. LopezSoto jury and (2) the misconductresulted in prejudice that had a substantial likelihood of affecting thejuryverdict. 

### Emery, 174 Wn.2d at 761. Because Raul Lopez did not object during closing argument, he bears the burden on appeal to demonstrate that the State's comments were soprejudicial that no curative instruction could have remedied their effect and that the comments had a substantial likelihood ofaffecting thejuryverdict. This court first decides whether a curative instruction could have obviated the effect ofthe prosecutor's statements. Raul Lopez cannot surmount this first hurdle. Lopez tersely contends that referencing Detective Jose Martin's testimony, commenting

on Maria's credibility as a witness, and callingthe defense's theory "ludicrous" were irrevocably prejudicial. Nevertheless, Lopez does not explain why the prosecutor's comments wereprejudicial in the context ofthe trial's entirety. As explained below, all ofthe alleged transgressing remarks could have been, and in some cases were, neutralized by curative instructions from the trial court. Theprosecutor's references to the testimony elicited from Detective Jose Martin during Raul Lopez's cross-examination were proper. As the Stateposits, Lopez opened the door to such commentarywhen he placed Martin's beliefabout Lopez's guilt at issue during his cross-examination. The State commits noreversible error by informing the jury oftestimony the defense elicited. 

### State v. 

### Thorgerson, 172 Wn.2d 438, 449, 258 P.3d 43 (2011). The trial court clarified with Lopez, outside the presence ofthejury, that Lopez raised the issue ofMartin's beliefabout his guilt. Confronting a law enforcement 11

### No. 32606-3-II1 State v. 

### LopezSoto



### officer with his early beliefin the guilt ofthe defendant and veracity ofthe victim is often

a wise defense tactic in that the strategy portrays the officer as slanting his investigation to only one conclusion, the culpability ofthe defendant. As shown by Lopez's closing argument, Detective Martin's allegedlypredisposed beliefin his guiltwas a key part of Lopez's theory ofthe case. Nevertheless, this tactic frees the State to comment on the defense strategy. Any potential prejudice created by the prosecutor's passing reference to Maria's credibility as a witness was neutralized by the prosecutor's own statements during closing argument and the trial court's instructions to thejury. Theprosecutor never personally vouched for the credibility ofMaria, and the prosecutor told thejurythat it was the sole judgeofthe credibility ofthe witnesses. The trial court instructed thejury that it was the solejudge ofthe credibility ofMaria and others. Juries are presumed to follow the trial court's instructions, absent evidence proving the contrary. State 

### v. Kirkman, 

### 159 Wn.2d 918,928, 155 P.3d 125 (2007). The prosecutor's comments that Raul Lopez's theory ofthe case was "ludicrous" and "desperate" were also capable ofcure by ajury instruction and likely do not even constitute improper statements. The trial court instructed thejury to disregard both attorneys' statements insofar as summations might be misconstrued as evidence. Moreover, our Supreme Court has expressly found use ofthe words "desperate" and "ludicrous" insufficientto create prejudice and warrant a new trial. 12

### No. 32606-3-III State 

### v. LopezSoto



### In State 

### v. Thorgerson, 

### 172 Wn.2d 438 (2011), our high court wrote that describing a defense theory as "desperate" and "bogus" was likely improper, but did not prejudice Thorgerson such that no curative instruction could cure the damage. In State v. Brown, 

### 132 Wn.2d 529,566,940 P.2d 546 (1997), our Supreme Court found the prosecutor's description ofa defense theory as "ludicrous" was reasonable in light ofthe evidence. In Brown, 

### a capital case, the defense argued that Cal Coburn Brown did not have a motive to kill the woman he kidnapped, raped, and tortured for several days, because she was asleep while Browntelephoned an airline to make his getaway. The Court held: "The use ofthe word 'ludicrous' was simply editorial comment by the prosecuting attorney which was a strong, but fair, response to the argument made by the defense." Brown, 

### 132 Wn.2d at 566. The prosecutor's characterization ofRaul Lopez'stheory ofthe case as "desperate" and "ludicrous" was, as in Brown, 

### uttered in response to a strong closing argument by the defense. In light ofthe defense's theory that Maria manufactured the story in order to preventher family from moving out oftheir house they shared with Lopez, the prosecutor's response was fair. CONCLUSION Raul Lopez waived any contention thatpurportedprosecutorial misconduct requires a new trial. We affirm his three convictions.

13No. 32606-3-III State 

### v. LopezSoto

A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

# ~!1:w.ae·7**~)~** Brown, 

### J.

14